S.K. Dhaon, J. - (1.) THE petitioner, an assessee under the U.P. Sugarcane (Purchase Tax) Act (hereinafter referred to as the Act), challenges the legality of an order passed by the Appellate Authority rejecting his appeal as incompetent on the ground that the memorandum of appeal has not been signed. Sub -section (5) of Section 3 of the Act provides that any person aggrieved by an order of assessment within thirty days of the intimation to it of the order prefer an appeal. The first proviso to it enjoins that no appeal shall be entertained unless it is accompanied by a satisfactory proof of the payment of the amount admitted by the appellant to be due from him. Rule 24 of the U.P. Sugarcane (Purchase Tax) Rules 1961 (hereinafter referred to as the Rules) in substance lays down that an appeal shall be preferred by presenting a memorandum of appeal in duplicate to the authority concerned. It also requires the appellant to comply with certain requirements as contained in Sub -rule (2). It is to be noted that neither the Act nor the Rules, unlike Order 41, Rule 1 of the Code of Civil Procedure and the other taxing statutes, require the signing of the memorandum of appeal either by the appellant or any one else on its behalf.
(2.) SINCE the Appellate Authority rejected the appeal merely on the ground that its memorandum was not signed by the petitioner, it has to be inferred that the memorandum conformed fully with the requirements of sub -section (5) of Section 3 and Rule 24. Did the petitioner destroy his right to appeal by presenting an unsigned memorandum? He has exhibited clear intention to exercise the right of appeal. He presented the memorandum within time before the appropriate authority. He did not observe any law in its breach by not presenting a signed memorandum. Such a presentation, therefore, was not an illegal act. If at all, it was a mere irregularity in the sense that an implied procedure had not been followed. Such a procedural defect could be cured by permitting the petitioner to sign the memorandum. This signature would have related back to the date of the presentation of the memorandum. Said Lord Westbury, in Attorney General v. H.J. Sillim, 1864 2 E.R.P. 1200 "an appeal" has been said to be a 'right to enter a superior court and invoke its aid and interposition to redress the error of the court below". In the absence of any definition of appeal, any application by a party to an appellate court, asking to set aside or revise a decision of a subordinate court, is an appeal within the ordinary expectation of the term, and that it is no less than an appeal because it is irregular or incompetent. See Nagendra Nath Dey and another v. Suresh Chandra Dey and others : AIR 1932 P.C. 165.
(3.) IT is well settled that an appeal must always be treated as a right and not as a matter of procedure. The central idea is that an appeal is a right. Normally, this right cannot be destroyed or taken away on account of some procedural defect or irregularity. Of course, this is subject to a legislative mandate either express or implied. The dominant idea is that an appeal is a right although such a right is hedged in with procedure. In Rani Bhagwan Kumar v. State of U.P. an appeal had been preferred under section 12 read with Rule 16 of the U.P. Vrihat Kar Adhiniyam, 1963. In this case specific requirement of the Rule was that the memorandum of appeal as well as the verification appended thereto should have been signed by the assessee concerned. This Court, after considering a large number of authorities in the cases arising either under other taxation statutes or in cases decided under Order 6 Rule 14 of the Code of Civil Procedure, came to the conclusion that no uniform rule relating to the effect of omission of signature or verification by a party personally upon pleadings, including memorandum of appeal, can be applied to pleadings generally under every enactment even when there is a prescribed from make the signature by a party essential. It is not safe to rely upon the provisions of one enactment to interpret provisions of another enactment. It is the particular provision under consideration which has to be interpreted in the light of the terms of the statute under which it has been made. This Court observed: - - We also think that in arriving at the correct interpretation of a procedural provision, too narrow a view of the jurisdiction of a judicial or quasi -judicial authority to condone an irregularity of procedure should not be adopted lest interests of justice suffer. If there is a broad principle which can be deduced from decisions relating to signature and verification of pleadings under various statutory provisions, it is that omission in this respect are mere errors of procedure which can be condoned by appropriate authority if it is satisfied that the party entitled and required to sign and verify really intended to act. In other words, a memorandum of appeal would not, as a general rule, become invalid merely because it did not contain the required signature or verification. It will be invalid if it is shown to be an utterly unauthorised or spurious document. The mere omission to sign or verify it would not, on this principle, be enough to invalidate the document automatically unless we are compelled to adopt such a view by the language of the Act under which the particular provision relating to the signature and verification of pleadings is made.;